Fixing DMCA takedown problems through shaming, legal reform

In the wake of the McCain campaign's letter protesting DMCA takedowns of its YouTube material, the "open letters" have come fast and furious. First came YouTube's response to the suggestion that it investigate all takedowns directed against US presidential campaign accounts (and only US presidential campaign accounts) before taking action: no.

Today brings two more letters, one each from the Electronic Frontier Foundation and Public Citizen, both offering solutions of their own. DMCA reform is the name of the game, but, in the interim, shaming the broadcasters into not issuing the takedowns works as an alternative.

Just like The Daily Show?

The takedown requests in question appear to be bits of news footage that both the McCain and Obama campaigns have been working into commercials. These commercials show up on the candidates' YouTube channel, where some are then flagged by broadcasters. YouTube takes such clips down for at least ten days, even if the campaigns file a counternotice saying that the clips in question are not infringing. That sort of delay, as the McCain letter noted, can be an eternity in politics.

CNN seems to be better about respecting Fair Use

The EFF's letter today targets broadcasters CBS, Fox, NBC, and the Christian Broadcasting Network, asking them to stop sending out takedown notices for this kind of footage.

"The videos at issue include clips of news footage that last only a few seconds, used as part of constitutionally-protected political speech. This is not piracy, but fair use, no different from what Saturday Night Live and The Daily Show do every night," said the EFF's intellectual property guru, Fred von Lohmann. "Sending unfounded takedown notices is not only against the law, it also threatens to interfere with the vibrant political debate occurring on community video sites like YouTube. Remixing the news to make your point is what political speech looks like in the 21st century."

As the EFF notes, the takedowns are "especially disappointing" since CBS, NBC, and Fox all signed on to a set of user-generated content principles that they created last year. Those principles said the right things about "fair use," but the new takedowns suggest either that those lessons have yet to be fully internalized or that the clips are being flagged through an automated process of some kind.

The EFF's "ask nicely" strategy might not work, which is why the group also has an idea for YouTube: have humans screen the videos, as the McCain campaign suggested, but do so for all videos on the site after a counternotice has been filed. If the clip in question is obviously fair use, YouTube should go ahead and put the video back up without waiting the full ten-day period.

Forget asking nicely, we need DMCA reform!

Public Citizen has a different take on the problem, which is that the whole issue shows the need for DMCA reform. Trying to shame broadcasters into good behavior, or appealing to the angels of their better natures, isn't a long-term solution. It might work for well-connected groups or for the stories that garner publicity, but it won't help, say, Joe the Plumber.

"Only so many cases will result in enough publicity to shame the senders of takedown notices—apart from the fact that some of them have no shame," says the letter. "And the option of filing a suit (or making an issue of the takedown) is illusory even for a presidential campaign with substantial legal resources."

What the US really needs is DMCA reform, and Public Citizen's open letter asks both campaigns to support such changes. The group wants to scrap the current takedown system. Instead, Public Citizen wants to see people receive notification when infringement is suspected (rather than just having a notice go, for instance, to YouTube). It also wants the ten-day takedown period scrapped, and it wants to force rightsholders to go to court to have content taken down.

"The fact that both of you have felt the sting of the DMCA shows that this is a bipartisan issue," the letter concludes. "We ask you to make the commitment now to join in the effort to restore free speech rights by paring back the most offensive provisions of the DMCA and other speech-restrictive intellectual property provisions that regulate the Internet."